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Showing 33 posts from 2020.

DOL Clarifies Scope of Fluctuating Workweek Overtime Pay Calculation

By definition, the hallmark of the fluctuating workweek (FWW) is that the hours fluctuate. Now, following another opinion letter from the U.S. Department of Labor (DOL) on the topic, employers know that this does not mean fluctuating below 40 hours per week.

The DOL was asked to weigh-in on whether an employee's time had to dip below 40 hours in order to qualify for the FWW method of calculating overtime pay. In answering the inquiry, the DOL asserted that there is nothing in the language of the regulation that requires weekly hours to vary both above and below the 40-hour threshold. More ›

DOL Temporary Rule Clarifies Paid Leave Under Families First Coronavirus Response Act

The U.S. Department of Labor issued a Temporary Rule on September 11, 2020, which revises regulations concerning paid sick leave and expanded family medical leave under the Families First Coronavirus Response Act (FFCRA). The rule, which goes into effect on September 16, 2020, was issued in response to the U.S. District Court for the Southern District of New York's decision in State of New York v. Department of Labor on August 3, 2020, which struck down portions of the FFCRA regulations. More ›

Title VII Enforcement Powers Against Employers Clarified by EEOC Opinion Letter

On Thursday, September 3, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) issued an Opinion Letter shedding light on the agency's own ability to sue employers under Section 707(a) of Title VII of the Civil Rights Act. The letter clarifies two notable areas for employers. First, the EEOC does not have broad authority to file a civil lawsuit against an employer under Title VII without a finding of discrimination or retaliation. Second, the EEOC must follow procedural guidelines—investigate a charge of discrimination, find reasonable cause, attempt to remedy such practice by conciliation—before a civil lawsuit may be filed. More ›

Escape Clause in Mandatory Arbitration Agreement Carries the Day for Employer in NLRB's Unfair Labor Practice Analysis

Historically, there has been a "push and pull" between the National Labor Relations Board (Board) and employers over mandatory arbitration agreements and class action waivers. Although most of the disputes have been resolved by recent SCOTUS jurisprudence, the Board remains concerned with restrictions in arbitration agreements that limit the ability of employees to file unfair labor practice charges before the Board if employees believe their Section 7 rights have been violated. More ›

Medical Staff Member Deemed Independent Contractor, Not Eligible for Title VII Protection

When assessing potential exposure for their employer-clients under federal labor and employment statutes, employment and health care attorneys often must start with the basics. That determination of employment status becomes even more important in medical facilities, such as hospitals, which have multiple and complex levels of workers with varying levels of skills and responsibilities. This is especially true with independent medical staff members who may have other contractual relationships with hospitals—such as recruitment agreements or administrative services contracts—which can complicate these questions.

The Ninth Circuit recently confronted such a situation when deciding whether an independent member of the medical staff, who had a separate recruitment agreement as well as an on-call services agreement, was an employee or independent contractor. This decision is important for the litigants, because independent contractors ordinarily are not covered by Title VII. More ›

EEOC Issues Guidance on Opioid Use and Accommodation in the Workplace

The U.S. Equal Employment Opportunity Commission (EEOC) issued two technical assistance documents on opioid-related disability issues and reasonable accommodation. The first document (Guidance) employs a question and answer format and focuses primarily on typical questions employees may ask, although employers can also use it as a useful guide when dealing with the illegal use of opioids, the lawful use of prescribed opioids, employees who have a history of opioid use or abuse, and the accommodation responsibilities in each instance. The second document offers guidance to healthcare providers tasked with providing documentation for opioid-using patients seeking accommodations. More ›

Eleventh Circuit Rejects Retaliation Claim Because HR Manager's Conduct was "Unreasonable" and Not Protected Under Title VII

In Gogel v. Kia Motors Mfg. of Ga., the Eleventh Circuit examined Title VII's opposition clause and the extent to which "oppositional conduct" can be considered so unreasonable that it loses Title VII protection. In this case, Kia fired its HR manager for strongly encouraging an employee to file a discrimination lawsuit against the company. Once terminated, the HR manager sued the company for retaliation, arguing that her actions were protected by Title VII's opposition clause. The court rejected the argument and the claim, handing a victory to employers. More ›

Federal Court in New York Strikes Down Key Provisions of DOL's FFCRA Final Rule

In State of New York v. United States Department of Labor, the Southern District of New York struck down several key aspects of the Department of Labor's (DOL) Final Rule implementing the provisions of Families First Coronavirus Response Act (FFCRA). Brought by the State of New York, this suit challenged several features of the DOL's Final Rule as exceeding the DOL's authority. The DOL cross-filed for summary judgment and moved to dismiss for lack of standing. More ›

NLRB Clarifies its Section 7 Evidentiary Standard for Evaluating Employer Discipline for Employee Abusive Conduct

Last September, we anticipated a change in National Labor Relations Board (Board) policy regarding the evidentiary standard for resolving unfair labor practice charges related to employer discipline of employee abusive conduct. Now, the Board will employ a single proof paradigm—the Wright Line test—to resolve such unfair labor practice allegations. More ›

As COVID-19 Cases Increase, States Adopt Workplace Standards and Emergency Ordinances

With over 40 states showing a significant increase in the number of COVID-19 cases, the novel coronavirus remains top of mind for employers throughout the U.S. Numerous state and federal measures have been—and continue to be—enacted in response to the pandemic. We explore some of these recent policies and their impact on employers below. More ›

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